Friedrich Carl von Savigny, the Legal Method, and the Modernity of Law
Two very famous elements of the European history of law are connected by the title of this article: modernity and Savigny.
'Modernity' is a big word. It appears impressively in the all-encompassing singular, as 'modernity' and not 'modernities', and it divides our complete history into the modern and pre-modern, or the modern and the old. The old may be forgotten. In speaking of modernity as an 'unfinished project', it is strictly the future that is examined; only there can completion be expected. It was the famous German philosopher Jürgen Habermas from Frankfurt who has stressed this perspective since 1980 in argument against several so-called post-modernists, such as Wittgenstein, C. Schmitt, and Lyotard as well as such conservatives as Foucault, Bateille, Derrida, and Nietzsche, again and again. Therefore, it was he who elaborated the formula 'modernity - an unfinished project' into a well-known topos for many of the battles to come against a new conservatism.
'Savigny', too, is a big word. Savigny was the most famous lawyer not only of his epoch. His name has surpassed those of many luminaries of past centuries and the current one. Even today he occupies an important place in every legal, many biographical, and even some of the major literary encyclopaedias. He may enter the discussion with ease and is now able to announce himself simply with his 'calling card', as becomes clear.
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Savignys card to Goethe, announcing his visit in 18321.
Two celebrities are good for a starting point but 'do not a summer make' - as we say when the swallows return in spring: A single swallow does not make a summer. One hopes they'll finally return soon, together. So, how may we make these two celebrities meet? What do they have in common? Why Savigny? What can be learnt from them for the modernity of law? Allow me to make my small and modest contribution to this.
What is meant by this formula - to what texts, people, legal thoughts, and figures does it refer? I shall call some elements to mind to illuminate the connection to Savigny.
The 'project of modernity' notion combines two messages: one of a historical nature and the other of a practical kind. Modernity is seen as a historical process, and its completion is a practical task. Therefore, the method is to connect proper cognition and proper action in one single project.
Seen from a historical standpoint, the view is one with its origins in the time of the Enlightenment, which was nearly before all else an enlightenment of the old legal world. It may be summarised thus, in brief: enlightened philosophers, in the form of thinkers such as Voltaire, Hume, and Kant; enlightened criminal law through the work of Beccaria and Feuerbach; enlightened public law such as the Virginia Bill of Rights, the Declaration des Droits de l'Homme et du Citoyen, and the US Constitution of 1787 and the French Constitution of 1789; enlightened private law in the Code Civil and the Austrian Allgemeines Bürgerliches Gesetzbuch of 1804 and 1811; and in the work of jurists such as Cambacéres and Portalis in France, Zeiller in Austria, Bentham in England, and jurists in the German Reich (Hugo, Hufeland, and Thibaut, as well as, perhaps, Savigny, too).
What is the message of these names and laws? It is that of (1) the emancipation of man from his self-created dependence, in keeping with Kant, the message of autonomy and freedom as a native right of all mankind; (2) the law's independence of religion and morals; (3) law as a guarantee for preservation of both, of the common and individual freedom; (4) law as a common and equal imperative; (5) civil rights for all men instead of rights only for states and nations; and (6) so-called eternal peace. This becomes more concrete when the various sections of law are examined. This consideration turns first to criminal law.
Enlightened criminal law is moulded by the following nine elements: (1) the law to punish humans by humans only, not in the name of God or pure reason; (2) the general form of written law as an essential protection with regard to foreseeable and equal treatment; (3) the strict commitment to written law in imposition of the hazardous evils called punishment now and then; (4) precise and specific written laws; (5) exclusive codification to create the latter; (6) fair trial before punishment, with only limited reasons for arrest, and with the abolition of torture; and (7) public and oral trial, and the social prevention of crime. In brief, the aim was to allow punishment only as a necessary and utmost evil.
For public law and the system of judicature the main task was to create inalienable human rights, as proclaimed in 1776, which are independent of state, guaranteeing liberty and property, as well as to secure them in different ways: through constitutions as solemn written texts, by separation of powers, via strict commitment of the judiciary to the law and independent courts and judges, through the priority of the constitution and special constitutional courts with judicial control, and by equal chances of participation in legislation through popular assemblies and parliaments as far as possible. Another task was to control the administration by creating administrative law and protection through courts. In short, the aims are human rights, a constitutional state, rule of law, and judicial control.
In private law, personal freedom was to be created by shaking off the traditional impositions from above - at first by making private law independent from dangerous public law and then by casting off the shackles of status and profession, by abolishing the personal distinction among a serf or farmer in the countryside, a citizen in commerce and trade, and a nobleman in military and civil service. Furthermore, private autonomy should be strengthened by cancelling so-called Preistaxen, referring to obligations to conclude a contract; by cancelling prohibitions of contracting, compulsions of approval, and tight privileges in the law of contract; then by abolishing the feudal bindings of property and the trappings of religion and of politics and clans with respect to the rights of domestic relations and inheritance. In brief the doctrine of individual private autonomy was the main purpose.
For enlightened jurisprudence the most important point was human autonomy, with independence gained first from religion, morality, morals, politics, and philosophy, those old companions of law. It was most important to create both, a legal subject of its own and a related legal method. Therefore, 'positive' law (a word newly in vogue) - meaning human, visible, and specially institutionalised rules - was emphasised. But this did not refer just to legal rules in the modern sense of the term. Since there existed no codifications of private law but a long chain of Roman, domestic, and Canon law, the analysis and formation of the law as an independent unified entity had to be the main purpose. To manage this, the positive law could be dealt with in either a practical-juridical or a scientific way. In any case, law was to be presented as a system - the second word to enter the vogue, in about 1800 - instead of as, polemically spoken, a mere 'aggregate'. A system was said to be a unity structured by principles (see, for example, Kant). One matter of serious debate was where the unity of the positive law originated: from the outside (e.g., the arranging mind) or the inside, the subject itself. The difference between so-called external, or formal, and internal, or material, systems still separates the main concepts of law and its method - for example, in German legal theory with Larenz and Kelsen. What role does Savigny play here? We again return to the 'Why Savigny?' question.
Today's German and European jurisprudence has left behind nearly all of Savigny's texts. Textbooks on private law and legal methods, and sometimes even decisions, only remind us of his theory of the four interpretation canons: the theory of the grammatical, logical, historical, and systematic element of every legal interpretation. This is not much but is at least something, since the other authors of Savigny's era, and even indeed of the entire 19 th century, are paid even less attention. Only in the history of science and in very cultured speeches is there more memory to find.
But is Savigny of crucial importance for the modernity of law? Was his contribution so fundamental that it is worth remembering? Should we not be better served by taking a glance at the 'modern' Rudolf von Jhering, the preacher of the motto 'the purpose creates all law', and his contemporary Karl Marx? This sounds modern. Or should we look at Eugen Ehrlich, the father of the sociology of law, or at Feuerbach, the father of modern criminal codes, or at the really radical modernists like the Königsberg-Kantians Theodor von Hippel and Christian Morgenbesser, whose books survived censorship only by accident? In 1798 we read it in Beiträge zu einem republikanischen Gesetzbuch - the terms for 'republican' and 'code' are the modern key words in this title.
There are important reasons to devote oneself sincerely to these authors, but there are some...